Originally published February 6, 2006

The Department of Labor’s Office of Federal Contract Compliance Programs ("OFCCP") has issued a new rule amending its record-keeping and impact analysis requirements for federal contractors and subcontractors with regard to internet-based job applicants. The rule goes into effect today and includes the agency’s first official definition of an "internet applicant."

This new rule is significant. While it may greatly expand record-keeping burdens for federal contractors and subcontractors, it also clarifies that these contractors may avoid significant record-keeping burdens by limiting consideration of expressions of interest under an established protocol, as discussed below. Federal contractors now have an opportunity to scrutinize their hiring protocols and revise existing policies where possible to avoid unnecessary record-keeping burdens.

Although the new rule goes into effect today, OFCCP indicated in a posting on its website that federal contractors and subcontractors will be given a 90-day grace period to update their systems to comply with the rule.

The OFCCP explained that during the grace period, it will apply "enforcement discretion" and will not cite a contractor for a "purely technical recordkeeping violation" of the new rule, provided that the contractor "(1) demonstrates that it is taking reasonable steps to update its systems to comply with the rule, including a projected date of compliance, and (2) collects and maintains records according to the established procedures consistent with OFCCP’s recordkeeping requirements that preexisted the Internet Applicant final rule."

Executive Order 11246 requires federal contractors and subcontractors to maintain all personnel and employment records for at least one year and to obtain gender, race, and ethnicity data for applicants and employees. The new rule adds "internet applicants" to the record-keeping requirements. The rule also requires federal contractors to collect data from these individuals. The new rule applies to jobs for which the federal contractor accepts expressions of interest via the internet and related technologies, such as e-mail, commercial and internal databanks, and employer websites.

The new rule states that to be considered an "internet applicant," an individual must meet four criteria:

  1. the individual submits an expression of interest in employment through the internet or related technologies;

  2. the contractor considers the individual for a particular position;

  3. the individual’s expression of interest indicates that he or she possesses the basic qualifications for the position; and

  4. the individual at no point in the selection process, prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in employment in the position.

70 Fed. Reg. 58,945, 58,961 (to be codified at 41 C.F.R. Part 60-1.3). This definition of an applicant may apply to both internet and traditional applicants if the contractor’s applicant pool is intermingled with both kinds of candidates.

The new rule also requires contractors to maintain records of all internet-based "expressions of interest" as to which the contractor "considered the individual for a particular position." 70 Fed. Reg. 58,945, 58,962 (to be codified at 41 C.F.R. Part 60-1.12). For those positions for which the contractor does not use the internet or related technologies, existing record-keeping standards continue to apply.

In issuing the new internet rule, OFCCP explained that a contractor "may establish a protocol under which it refrains from considering expressions of interest that are not submitted in accordance with standard procedures the contractor establishes." 70 Fed. Reg. 58,945, 58,962. The OFCCP further explained that a contractor "may establish a protocol under which it refrains from considering expressions of interest, such as unsolicited resumes, that are not submitted with respect to a particular position." 70 Fed. Reg. 58,945, 58,962.

© 2006 Sutherland Asbill & Brennan LLP. All Rights Reserved.

This article is for informational purposes and is not intended to constitute legal advice.